Mediation – (sometimes
referred to as Alternate Dispute Resolution or ADR)
The Custody Minefield Factsheets –
Smartphone Series (optimised for smartphone users). Copyright Michael Robinson 2011.
This guide applies to cases private family law cases being brought before the
courts of England and Wales from 6th April 2011.
Will every applicant be expected to
attempt mediation?
As the person wishing to apply to
court, what should I do?
Why should I consider
mediation?
What happens if I refuse
mediation?
Are
mediated agreements legally binding?
Questions
you may wish to ask at the first meeting or by telephone beforehand
What is mediation? <Back to Top>
‘Mediation’ is where an independent third
party helps parents come to a voluntary agreement about arrangements for their
children and finances at separation and after.
From
6th April 2011 all potential applicants to
court in relevant family proceedings will be expected, before making their
application, to have followed the steps set out in a document called the
Pre-Action Protocol. The Government wishes parents to
attempt to resolve disputes without the matter going to court.
Will every applicant
be expected to attempt mediation? <Back to Top>
You will be expected
to attempt mediation unless:
1. The
mediator is satisfied that mediation is not suitable because another party to
the dispute is unwilling to attend a Mediation Information and Assessment
Meeting and consider mediation.
2. The
mediator determines that the case is not suitable for a Mediation Information
and Assessment Meeting.
3. A
mediator has made a determination within the previous four months that the case
is not suitable for a Mediation Information and Assessment Meeting or for
mediation.
4. Any
party has, to the applicant’s knowledge, made an allegation of Domestic
Violence against another party and this has resulted in a police investigation
or the issuing of civil proceedings for the protection of any party within the
last 12 months.
5. The
dispute concerns financial issues AND the applicant or another party is
bankrupt.
6. The
parties are in agreement and there is no dispute to mediate.
7. The
whereabouts of the other party are unknown to the applicant.
8. The
prospective application is for an order in relevant family proceedings which
are already in existence and are continuing.
9, The prospective application is to be made without notice to
the other party.
10. The
prospective application is urgent, meaning:
(a) there is a risk to the life, liberty or physical safety of
the applicant or his or her family or his or her home; or
(b) any
delay caused by attending a Mediation Information and Assessment Meeting would
cause a risk of significant harm to a child, a significant risk of a
miscarriage of justice, unreasonable hardship to the applicant or irretrievable
problems in dealing with the dispute (such as an irretrievable loss of
significant evidence).
11. There
is current social services involvement as a result of child protection concerns
in respect of any child who would be the subject of the prospective
application.
12. A
child would be a party to the prospective application by virtue of Rule
12.3(1).
13. The
applicant (or the applicant’s legal representative) contacts three mediators
within 15 miles of the applicant’s home and none Is
able to conduct a Mediation Information and Assessment Meeting within 15
working days of the date of contact.
14. You
are applying for an enforcement order, or a financial compensation order.
15. There
are emergency proceedings before the court (about the children) which are undecided.
How
much does mediation cost? <Back to Top>
There is no standard
fee. Mediators are independent and will have their own charging structure. Shop
around! The service may be free if
you are on a low income. If you are using a solicitor, they should calculate
whether you qualify for legal aid. A mediator can also help you find out if you
are eligible to have legal aid cover this cost. You
may also wish to visit the Community Legal Advice website or call
0845 345 4 345 to check whether you qualify for public funding.
How do I find a
mediator? <Back to Top>
Information on how to find a family mediator
may be obtained from local family courts, from the Community Legal Advice
Helpline - CLA Direct (0845 345 4345) or at www.direct.gov.uk.
As the person wishing
to apply to court, what should I do? <Back to Top>
1.
Before going to court, you (or your
solicitor if you are legally represented) must contact a family mediator to
arrange a ‘Mediation Information and Assessment Meeting’ unless there are exceptional
circumstances (see Will every applicant be expected to attempt mediation?).
2.
If you are the applicant, you or your
solicitor should provide the mediator with contact details for the other
parties to the dispute. The mediator will the contact them to discuss that
party’s willingness and availability to attend a Mediation Information and
Assessment Meeting.
3. A Mediation Information and Assessment
Meeting should be organised within 15 days. If the
mediator cannot meet this timescale, contact another firm. If you have tried
three firms of mediators and none can arrange a mediation session within 15
days, you can choose to apply to the court if you wish to.
3. You should then attend the Mediation
Information and Assessment Meeting. Where parties are willing, both can attend
the same meeting, although separate meetings can be arranged.
4. If, after the Mediation Information and
Assessment Meeting, the you (as the applicant) still wish to apply to the
court, you (or your solicitor) must complete a Family Mediation Information and
Assessment Form (Form FM1
which you can download by clicking the link) which should be sent or delivered to
the court alongside your application.
Why should I consider mediation? <Back to Top>
If
successful, mediation will be cheaper than going to Court. Mediation stands the
greatest chance of an agreement being reached where both parents are happy, and
therefore causes less stress for all. In the future, it is likely that
separating parents will need to attempt mediation prior to seeking the court’s
assistance in resolving areas of disagreement. Where parents currently qualify
for legal aid, the Legal Services Commission (which provides legal aid funding)
requires parents to consider mediation.
Mediation
requires both parents to be able and willing to reach compromise, although a
trained and skilled mediator might be able to assist that process.
What happens if I refuse to attempt mediation? <Back to Top>
Unless
you have good reason (e.g. those listed in the section Will every applicant be expected to
attempt mediation?) we recommend you
do attempt mediation. The court will take note of your refusal to do so and may
direct both parties to attempt mediation before court proceedings continue. This
may result in delay and cause the judge to think you are ‘difficult’ if they do
not accept your reasons for refusal.
What does a mediator do? <Back to Top>
Mediators
can assist couples to communicate when they are separating and disagreeing
about issues such as financial matters and where their children should live.
Mediation can be carried out as an alternative to, or before, during or after
court proceedings.
Family
mediators can give general information about the law and the way the legal
system works. They cannot provide advice about a person's legal rights or
their best course of action, and can’t make decisions for you or give you legal
advice.
Are mediated agreements legally binding? <Back to Top>
Not in
themselves, although you may also apply to the court following an agreement
having been reached, and ask the judge to make an ‘order by consent’.
Questions you may wish to ask at the first meeting or by
telephone beforehand <Back to Top>
How much will mediation cost?
Do I qualify for legal aid? (If so, ask if the mediator
does legal aid work... not all of them do)
How long do the sessions last?
Is there a waiting list?
Do I
need to bring any information with me?
Support <Back
to Top>
The Custody Minefield offers support forums
where you can ask our team of experienced support staff questions about family
law, the courts and separation. Collectively, we have answered more than 10,000
posts on other family law related support forums. Visit our Support Forum Page on
The Custody Minefield website to find out how to register.